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SEE YOU IN COURT! - May 2010

May 1, 2010

The members of the Nutmeg Board of Education had hoped that the public would let up after they approved a budget with only a one-percent increase. However, the fact that the Board had been able to come in with such a low increase only emboldened the members of the Nutmeg Union of Taxpayers. Now, during public comment, NUTS President Charlee Cheapskate holds forth every meeting on the “incompetent wastrels” in Central Office. At the meeting this month, Charlee complained about the bus routes. “Every day,” she intoned, “I see school buses that are half full. You people have no idea how to run a school district.”

“That’s it!!” shouted veteran Board member Bob Bombast. “I am sick and tired of listening to NUTS every week, second-guessing everything that we do.”

“But I am just warming up,” Charlee responded. “In accordance with the Board’s established guidelines, I have two more minutes in which to offer the Board my helpful advice. Just zip it and listen, OK?”

“You have said more than enough, Charlee,” Bob countered. “Board members, I move that we suspend further public comment this evening.” To avoid embarrassing Bob, the Board members quickly seconded and approved Bob’s motion, and Mr. Chairperson told Charlee to sit down and be quiet.

The next day, Ms. Superintendent received a hand-delivered letter from Charlee on NUTS stationery, setting forth an FOIA request. Charlee was requesting “all electronic information in the district’s possession relating to school bus routes.” Ms. Superintendent was confused, and she asked the Business Manager, Green Eyeshade, to respond. He promptly reported back to Ms. Superintendent that a printout of the information would be some 700 pages. “At 50 cents a page, that is $350. That should slow NUTS down some with the FOIA requests,” Green told Ms. Superintendent. “I will send Charlee the letter asking for prepayment. I am sure not going to print out all this information until we get paid.

A few days later, Charlee called Ms. Superintendent. “Don’t jerk me around,” she barked. “My request was clear – I want the information electronically, and I know it won’t cost you $350 to give it to me. If I don’t have the disk by noon tomorrow, I will haul you before the Freedom of Information Commission and have you fined.”

“But why do you want the information like that,” asked Ms. Superintendent. “What possible use could you have for it?”

“I don’t have to explain myself,” Charlee responded. “But I will. With the information in electronic form, NUTS will be able to propose new routes to save the Board money. You should be thanking me rather than giving me a hard time.”

Does Ms. Superintendent have to provide the information electronically? What happens if she cannot respond by the following noon?

*        *        *

As our society relies more and more on computers and the related electronic information, there will be a fundamental shift in how we comply with Freedom of Information requests. The established rules are clear – (1) public agencies must provide access and/or copies to documents that exist, (2) public agencies do not have to create new documents, and (3) public agencies can charge $.50 per page, with prepayment required for any requests that exceed $10.00. The way that we must handle electronic information, however, is completely different.

Section 1-211(a) of the Freedom of Information Act contains broad language about requests for information maintained in computer files:

(a) Any public agency which maintains public records in a computer storage system shall provide, to any person making a request pursuant to the Freedom of Information Act, a copy of any nonexempt data contained in such records, properly identified, on paper, disk, tape or any other electronic storage device or medium requested by the person, if the agency can reasonably make such copy or have such copy made.

We note that there is no reference to “documents,” i.e. discrete pieces of paper that would normally be considered the public records subject to disclosure and to copying at 50 cents per page. To be sure, if a requester asks for a computer print-out, the normal rules apply. However, if the person asks that the information be provided electronically, it must be provided in that format.

In a 2002 case involving the Hartford Courant, the Connecticut Supreme Court interpreted this statute very broadly. There, the Courant asked the Department of Public Safety for conviction information, and the DPS quoted a cost of some $20,000,000 to comply, given the volume of paper records that would be provided. However, the court held that Section 1-211 required that DPS provide the requested information electronically. Significantly, the court held that reformatting the information as the Courant requested was required and did not constitute the creation of a new document, which of course the FOIA does not require.

Public agencies may charge for providing such information. Section 1-212 states that the public agency can charge the hourly rate of the employees providing the information along with the cost of the medium on which the information is transmitted. If the agency does not have the capacity to respond to the request, it may contract with an outside agency to do so. However, the Department of Information Technology is responsible for monitoring such charges to assure that they are reasonable and consistent. The public agency can require prepayment if the charges exceed $10.00.

Charlee demanded this information by the following noon. The standard for responding to FOIA requests is that the response must be “prompt.” This is a factual question that hinges on the scope of the request and the accessibility of the information. Some responses can be immediate, and others can take weeks. However, in any event public agencies should provide an initial response to such requests within four business days, along with an estimate of how long it will take to provide the requested information. It is also appropriate to discuss the request with the person making it, and sometimes it is possible to narrow the request, thus reducing the burden on the public agency as well as the requesting party, who must sort through the provided records.

Finally, this scenario raises a constitutional issue. Boards of education are not required to provide for public comment. Once they do, however, they have created a limited public forum. Boards of education may regulate the “manner” of speech, and yelling and personal attacks need not be tolerated. However, the First Amendment prohibits “viewpoint discrimination,” and boards of education that provide for public comment must treat all speakers equally, even if their message is unwelcome.

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